ntroductionAbusive head trauma (AHT)2 is an area of prose-cution in which the defense bar has been particu-larly aggressive, and the underlying medical issues

especially volatile. In addition to the other challengesthat these cases pose to prosecutors, each involves com-plicated expert testimony. Moreover, Shaken BabySyndrome (SBS) has been the subject of frequent andsometimes conflicting media attention. Because of theinherent complexities of these cases, conducting aneffective jury selection is crucial.Though the rules governing jury selection vary considerably across juris-dictions, this article will serve as a general approach toselecting a fair jury in AHT cases.

Approach to AHT jury selection It is especially important in AHT cases that jury selec-tion be specifically tailored to the facts, the prosecutor’stheme of the case and the defense being advanced.As Paul DerOhannesian notes,“jury selection – thequestions and jurors – are linked to the prosecutor’stheme.Without a theme, asking jurors questions can belike trying to climb a mountain in the fog. Having aneffective theme guides jury selection as well as theother major stages of the trial.”Achieving such preci-sion requires multiple layers of inquiry.At the broaderend of the spectrum, prosecutors will want to knowwhat experience jurors have with children and, morespecifically, with child abuse. It is common for somemembers of the venire to have heard of SBS, although alittle knowledge can be dangerous. For others it will bea completely new concept. Narrowing the focus, prose-cutors should explore how jurors may respond to theexpert testimony. For instance, one study focusingexclusively on child sexual abuse found that 60% ofjurors expected definitive medical evidence.3 Comparethat finding to the fact that victims of AHT may exhib-it few or even no external signs of injury.By anticipating that expectation, prosecutors can usejury selection to appraise and educate potential jurors.Another specific area of inquiry should be the media.In order to understand how jurors might deliberate, theprosecutor must understand the extent to which jurorsare predisposed to the issues and the process, and howmuch exposure they have received previously about thetopic.

The following are sample questions prosecutorsmight use when selecting a jury:4

• Experience with children. Defenses to AHT caninclude shortfall and accidental injury scenarios. Beginto address these issues with general questions aboutcaring for children.- How many of you have children? How old are they? - How did you handle your baby’s head? Why did

you do that?

- Do you remember how old they were when theybegan to walk? Did they fall over often duringthat time? Did you have to change anything aboutthe way you were parenting when your child (ren)began to move around the house?

- Did your child ever fall off a couch or bed? Whathappened? Was your child injured? Was it serious?

- Did you ever bounce your baby in your arms orlift them up and down in the air? Did this bounc-ing ever cause an adverse reaction in the health ofyour child?

- If this is a daycare or nanny scenario: How many ofyou place your children in daycare? What are theresponsibilities of the daycare provider? What doyou think of people who use daycare/nanny? Why?

- Who do you think is responsible when a childgets injured while outside the parent’s care? Doesanyone agree with the statement “the parent is stillresponsible if a child is injured in daycare (or by ababysitter)”? Why?

- How would you react if your child was injured?Or in danger?

- If the defense involves vaccinations: How many ofyou have had a vaccination? Which ones? Notethose who have had the vaccination(s) at issue inyour case. Have your children been vaccinated?Were there any adverse reactions? Did you or yourchild have to go to the hospital?

• Experience with child abuse or AHT. Sensitivequestions should be asked discreetly and may requirethe questions be asked by the court and/or prosecu-tors to approach the bench.- What is your definition of child abuse?- Who is a “typical” child abuser? Why do you

think that?- Have you or someone close to you ever been

accused of child abuse? What happened? Howwere you or that person treated? Will that impactyour ability to act impartially on this jury?

- Have you or someone close to you been a victimof child abuse?

- Have you or someone you know suffered thedeath or serious injury of a child? What hap-pened? How did the parents behave?

- Do you believe that parents can actually harmtheir children?5 How many of you agree with thestatement,“Even if a parent harms a child, s/heprobably did not intend to”? (Prosecutors may usethis opportunity to talk about the mens rearequirement.)

- Would you have difficulty with an instructionfrom the judge that states a defendant who reck-lessly kills someone can still be guilty of murder?

- Could you consider whether a parent had reck-

UpdateAmericanProsecutorsResearchInstitute

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Update

UPDATE is published by theAmerican Prosecutors ResearchInstitute’s National Center forProsecution of Child Abuse. Items maybe reprinted if attributed to APRI’sNational Center for Prosecution ofChild Abuse. Please provide copies toUPDATE. Contact us if you haveinquiries or article suggestions at703.549.4253.

Jury Selection in Abusive Head Trauma Cases:

The People Thank and Excuse Juror #2By Taya Moxley-Goldsmith1

CHILDPROOF:ADVANCED TRIAL

ADVOCACY FOR CHILD

ABUSE PROSECUTORS

FEBRUARY 6–11, 2006National Advocacy Center,Columbia, South CarolinaFor details, visit our Web site atwww.apri-ndaa.org, or contact theNational Advocacy Center at803.544.5055.

I

American Prosecutors Research InstituteNational Center for Prosecution of Child Abuse99 Canal Center Plaza,Suite 510Alexandria,Virginia 22314www.ndaa-apri.org

The National Center for Prosecution of Child Abuse is a program of the American Prosecutors Research Institute,the non-profit research,training and technical assistance affiliate of the National District AttorneysAssociation.This publication was prepared under Grant No.2003-CI-FX-K008 from the Office of Juvenile Justice and Delinquency Prevention,USDepartment of Justice.This information is offered for educational purposesonly and is not legal advice.Points of view in this publication are those ofthe authors and do not necessarily represent the official position of the USDepartment of Justice,NDAA or APRI.

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lessly, rather than intentionally, killed or injured a child? Can you acceptthat reckless killing of a child is a crime?

- Do you believe that a child can be severely injured and/or die as theresult of one abusive incident? (Abusive head trauma can be a one-timeincident resulting in the death or severe disability of a child.)

- Do you feel that you would need an eyewitness in order to find thedefendant guilty? Why or why not? Would you be surprised to knowthat few criminal cases have eyewitnesses?

- Has anyone heard of Shaken Baby Syndrome? Can you describe whatthat means? What should happen to someone who does that?

- How many of you believe that it is ever appropriate to shake achild/infant?

• Expert witnesses: These cases can often become a battle of the experts.Jurors need to be able to assess both the substance and credibility ofexpert testimony and not be persuaded simply by the fact that a witnesshas an MD, PhD, etc. It is important to determine how a potential jurormight approach this type of testimony.- Has anyone ever sought out a second opinion from a doctor? Why?- Would you agree that doctors make mistakes, too?- How many of you feel you should accept the opinions of medical

experts because they are “experts” and have more knowledge about thesubject than you have?

- Have you ever had a bad experience with a doctor? Will that cause youto question the opinions of a doctor if one testified?

- What might cause you to question an opinion made by a medicalexpert?

- How will you determine whether an expert’s opinion makes sense orseems logical?

- How would you feel if you heard conflicting medical opinions in thiscase about the nature and cause of the child’s injuries?

- If there are conflicting medical opinions among the expert witnesses,how many of you would automatically conclude there must be reason-able doubt in the case? In other words, how many of you agree withthe statement,“If the experts can’t agree, how can we be expected to”?

- What do you think about trying to reach agreement with your fellowjurors, if the experts themselves don’t agree about what caused thechild’s injuries?

- Do you think that the testimony of an expert witness should be treateddifferently than other testimony when you consider the evidence?

- Do you think you would be capable of rejecting testimony of anexpert witness if the testimony of that witness did not appear to bereliable or consistent with common sense or the evidence in the case?

• Media exposure: Questioning in this area should be designed to neu-tralize negative impressions formed by jurors as a result of exposure tomedia information and create sufficient information for exercise ofperemptory challenges or challenges for cause.6 If there has been recentmedia exposure (especially about local issues or high profile cases ofabuse), be sure to include it in your voir dire.7

- How many of you read the newspaper? Watch the morning or eveningnews? Where do you get your news (i.e., family, friends, the internet,school, or colleagues at work)? How many of you use the internet,watch CNN, C-SPAN, etc.? How often? (Keep in mind that “[i]nde-pendent information gatherers will want proof and will more likelyform their own opinions. Jurors who are lax in gathering informationare more apt to be swayed by the majority during deliberations.”8)

- After receiving an affirmative response regarding media exposure –

How many of you thought that it was an accurate representation?How many of you felt that the story portrayed in the article/newsprogram is typical of most AHT/SBS cases?

- What, if any, role or effect do you think stories you have read orprograms you have seen should have on this trial? Do any of youthink that you should rely on information presented in the popularmedia to help you decide the facts of this case?9 Do you all under-stand that the media information is not evidence in this case?

- Do you think you will be able to put aside what you have seen orread in the media when deliberating on this case? How will youdo that?

ConclusionIn addition to the questions above, prosecutors should make the usualinquiries into the venire’s experience with the justice system, burden ofproof, intent, and character issues of prosecution witnesses (if relevant),and they should always be alert to answers suggesting bias. Jury selectionis not limited to asking a series of questions.

Remember that jury selection is not just about choosing jurors; italso marks the beginning of the relationship between the prosecutorand the jury.To make the best impression, be respectful, attentive, andsensitive to the feelings of the venire.Though the perfect jury may beunattainable, jury selection can affect a successful outcome. By carefullycrafting the approach to jury selection, prosecutors can lead the jurythrough their case from the first voir dire question to the last sentence insummation, ultimately arriving at a just result in these difficult cases.

1 Former Staff Attorney,APRI’s National Center for Prosecution of Child Abuse.2 The term “abusive head trauma” includes the injuries sustained in shaken baby

syndrome, shaken impact syndrome, and other non-accidental head injuries. Formore information on jury selection, please consult APRI’s National Center forProsecution of Child Abuse.

3 Nick Maroules & Charles Raymond, VOIR DIRE IN CHILD-VICTIM SEX TRIALS:A STRATEGIC GUIDE FOR PROSECUTORS, Illinois State’s Attorney AppellateProsecutor Child Witness Project 28-9 (1993).

4 These questions were compiled from the following sources:APRI’s NationalCenter for Prosecution of Child Abuse, INVESTIGATION AND PROSECUTION OF

CHILD ABUSE 287 (2004), materials developed by former NCPCA SeniorAttorney and current Tennessee Assistant District Attorney General BrianHolmgren, Paul DerOhannesian, SEX ASSAULT TRIALS, 2ND ED. (1998), and theauthor.

5 In one study of 81 perpetrators who admitted to inflicting traumatic braininjury, 15% were the mother of the child, 56% were the father of the child, 16%were the mother’s boyfriend, and 5% were the babysitter. Suzanne P. Starling, etal., Analysis of Perpetrator Admissions to Inflicted Traumatic Brain Injury, ARCH

PEDIATR ADOLESC MED at 455 (May 2004).6 Brian Holmgren, Jury Selection in Child Abuse Cases, p. 24, prepared for APRI’s

National Center for Prosecution of Child Abuse (on file with the NationalCenter).

7 An episode of ABC’s PrimeTime about Louise Woodward and skeptical of SBSdiagnosis aired on October 7, 2004, and the CBS Early Show had a segmentabout the dangers of shaking on March 1, 2005.

8 Cynthia R. Cohen, Ph.D., Asking the Right Questions: Current Events Shadowingthe Jury Pool, TRIAL BRIEFS, (North Carolina Academy of Trial Lawyers, Raleigh,NC),August 2002 at 5.

9 In the discussion of media exposure, prosecutors may also need to address thenon-news television viewing habits of potential jurors. See Maricopa CountyAttorneys Office, CSI: Maricopa County,The CSI Effect and its Real-Life Impact onJustice (June 30, 2005) available athttp://www.maricopacountyattorney.org/Press/PDF/CSIReport.pdf; Kit R.Roane and Dan Morrison,The CSI Effect, US News and World Report,http://www.usnews.com/usnews/culture/articles/050425/25csi.htm (April 25,2005) and Karin H. Kather, The CSI Effect: Fake TV and its Impact on Jurors inCriminal Cases, THE PROSECUTOR, March/April 2004.